The Queen v. Chan Loi and Others

CACC000648/1983

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Li, J.A.

Date: 2nd August, 1983

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JUDGMENT

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1. The three appellants are convicted of assault occasioning actual bodily harm on LI Man-fai who was the 2nd prosecution witness in the court below.

2. In this offence, the 1st appellant may be described as the principal offender, the 2nd and 3rd appellants took a minor part. At the beginning of this appeal, the 1st appellant indicates through his counsel that he would abandon his appeal. That leaves the 2nd and the 3rd appellants.

3. It is hot disputed fact that the 1st appellant and the 1st prosecution witness, Madam Lo, are husband and wife albeit separated. On the 30th of November, 1982, the two of them went to dinner. Despite the separation, they still saw one another occasionally. After the dinner, they took a taxi to the home of Madam Lo where the 1st appellant insisted he should see her to her home. Upon her refusal, a quarrel arose. In the course of this quarrel, the 1st appellant punched the hose of the 1st prosecution witness, started to beat her and kick her. This was observed by the 2nd prosecution witness, Mr. Li. He tried to stop the 1st appellant, whereupon the 1st appellant turned on him, punched him on the nose in the first instance, and kept oh hitting him "like a mad dog".

4. The 2nd and the 3rd appellants arrived at the scene in quick succession. The 2nd appellant first held Mr. Li from behind. The 3rd appellant soon joined in to hold him. As a result of the force of the punch delivered by the 1st appellant, Mr. Li hung on and rested on a taxi which happened to stop by. The 2nd and the 3rd appellants grabbed him from behind, dragged him from the taxi to the railing. The 2nd and the 3rd appellants also hit him on the head and the ear.

5. The defence was that the 1st appellant had a quarrel with his wife and accidentally hit her. Mr. Li approached the 1st appellant, accused him of hitting a woman and punched the 1st appellant on the chest. There followed a struggle. They felt onto the ground. They were struggling. It caused the 1st appellant injury. The 2nd and the 3rd appellants came in and helped to separate them.

6. As far as the 2nd and 3rd appellants were concerned the only issue was whether the 2nd and 3rd appellants held Mr. Li so as to facilitate the 1st appellant's assault on Mr. Li and whether they participated in hitting Mr. Li on the head and the ear.

7. Mr. Li said the 2nd and 3rd appellants went far beyond separating on stopping the fight. In fact they were helping the 1st appellant to assault him and they themselves also took part in assaulting him. As soon the police officer arrived and the whole group was taken to the police station and eventually hospital for medical examination.

8. I am only concerned, as I have said, with the 2nd and the 3rd appellants. But the medical report on the 1st appellant is relevant. This reflects upon his credibility. Mr. Li suffered a haemaboma of 2 cm in diameter with 2½ cm laceration over the left forehead. Two abrasions 1 cm in diameter each were found over his left eyebrow region and the left face. He had swelling, bruises and tenderness over the nose. There was an area of bruises over the upper lip, tenderness found over anterior chest wall. The 1st appellant had abrasions of both forearms and hands. He had a mild tenderness at the sternal region.

9. Various grounds of appeal have been filed originally on behalf of all three appellants. In view of the fact that the 1st appellant had abandoned the appeal, some of the grounds affect only indirectly the 2nd and the 3rd appellants. No useful purpose will be served in repeating these grounds verbatim.

10. The gist of these grounds are that the magistrate erred in his findings of facts in that the medical report never supported the evidence of the 1st and 2nd prosecution witnesses, but on the other hand; such medical report was consistent with the evidence given by all three appellants and a favourable interpretation should be given to such evidence in the circumstances. As such the conviction of the 2nd and 3rd appellants was unsafe and unsatisfactory.

11. A statement made by the 1st appellant which was not produced before the learned magistrate. By leave of this court and with the consent of learned counsel for the prosecution, such statement, a cautioned statement, which was taken in the early hours or the next morning after the 30th of November 1982 was put before me. In this statement, the 1st appellant gave an account of what he said in his evidence subject to one difference. In the statement he admitted having punched his wife on the nose and having given a blow to Mr. Li. At the same time, he said that the 2nd and the 3rd appellants took no part in the fight except their effort in trying to separate the struggle between him and Mr. Li.

12. Having regard to the totality of the evidence, it is argued that when Mr. Li said that the 1st appellant kicked his wife, there was no bruise found in the medical report on the wife at all. All that was found on her was an injury to her nasal bone - a tenderness and swelling of the nasal bone. That was consistent with the 1st appellant's evidence that he did punch his wife on the nose.

13. There were abrasions on both forearms and hands of the 1st appellant. This is consistent with his falling onto the ground when he struggle with Mr. Li. There was also a tenderness in the sternal region. Counsel argues that could only be caused by a hard punch.

14. As to the injuries suffered by Mr. Li, counsel contends that these injuries are inconsistent with the extent of attack as alleged by him. There was no injury to the ear. All the other injuries were consistent with his struggle with the 1st appellant and his falling onto the ground.

15. The magistrate indeed mentioned that the medical report supported the evidence given by the two prosecution witnesses. It is contended he misdirected himself on the facts. It is contended that he failed to consider such injuries are equally consistent with the evidence given by the appellants. The medical evidence was not, to say the least, inconsistent with the evidence given by the 1st and 2nd prosecution witnesses. The head injuries suffered by Mr. Li indicate that he was hit extensively in the region of his face, his nose, his ear and his lips. It is true that there is no evidence that the 1st prosecution witness had any bruise oh her body. However the magistrate was the person who have heard and seen the witnesses. He was the best judge as to their credibility.

16. Coming to the consistency of the medical evidence with the evidence given by the 1st appellant, I observed that in the course of the evidence the let prosecution witness said that she could have scratched the 1st appellant while they were standing and struggling. Neither of the prosecution witnesses said that they fell down at all. Mr. Li said that he was held by his tie when he was punched by the 1st appellant. He said he tried his best to ward off the blows. At the same time he tried very hard to push the 1st appellant away. The push caused the tenderness on the let appellant's chest.

17. I see no reason to interfere and to disturb the learned magistrate's finding. The magistrate was entitled to take into consideration that there was discrepancy between the appellants evidence as well. The 1st and 2nd appellants in their evidence said that the 3rd appellant tried to help to separate the fight. The 3rd appellant in his evidence said that he arrived late. Although he was asked by the 2nd appellant to help to separate the fight, yet he took ho part whatsoever at all. This is clearly inconsistent with the evidence as given by his co-accused and inconsistent with the statement given by the 1st appellant to the police.

18. Having regard to the evidence as a whole and the statement of findings by the learned magistrate, I can find no fault with his findings. I am not prepared to disturb his finding of facts and the appeal is accordingly dismissed.

Representation:

Mr. Jeevan Hingovani (Haldane Midgley & Co.) for 2nd and 3rd appellants

Mr. Cagney (Crown) for respondent